Suren

The libel herein was filed November 16, 1934, under the general maritime law to recover damages for personal injuries sustained by the libelant on June 24, 1932, when he was a seaman aboard the steamship Monterey, due to the falling of a port hole frame upon the hand and wrist of the appellant, The appellant alleged that the injury resulted from the unseaworthiness of the ship, in that the eyebolt designed to hold the port hole frame was worn and weakened and carried away in consequence.

In order to avoid the claim of laches due to the delay of over two years in filing the libel, which appeared upon the face of the libel, the libelant alleged in his first amended libel that on June 20, 1934, he filed a prior libel, No. 21794-K, against the appellee Oceanic Steamship Company in the District Court of the United States for the Northern District of California, to recover for the same injuries. He alleges in the amended -libel that “said cause [No-. 21794-K] as to this respondent herein [Oceanic Steamship Company] upon technical grounds was dismissed without adjudication or determination finally upon the merits.” But by an amendment to the libel herein libelant further alleges with…

(concurring).

I concur in the result, but cannot subscribe to the application of the doctrine of res judicata to the facts herein, for two reasons: (1) In considering a defense raised by demurrer, the court may consider only the facts pleaded, 1 and the same rule is applicable here because exceptions in admiralty raise the defenses ordinarily raised by demurrer; (2) even if facts are considered in connection with a demurrer other than those pleaded, such facts show affirmatively that this proceeding is not barred by res judicata.

With respect to the first proposition, the defense of res judicata may be raised by demurrer, 2 and therefore may be raised in admiralty by exceptions. The remainder of the proposition is self-explanatory when it is said that the libel in the instant case alleges that the decree in the former action “was not made with prejudice” and “without adjudication or determination finally upon the merits,” because a judgment in the prior action, unless rendered on the merits, is not res judicata. 34 C.J. 774, § 1193.

With respect to the second reason why the doctrine of res judicata cannot be here applied, the majority, after inspecting copies of the libel,…